President Donald Trump’s administration recently announced they will use a provision of the Affordable Care Act known as the “state innovation waiver” to undermine the law.
The “state innovation waiver”—which appears in the law as the 1332 provision—is supposed to allow states to waive certain regulations in the law, as long they create a system that is “at least as comprehensive and affordable.” But now the Trump administration has adopted some dubious definitions of words, like “comprehensive” and “affordable,” to undermine the law’s protections and structure.
It is fittingly ironic that a provision added mainly as a public relations stunt to trick progressives into supporting the ACA would be used to cripple the law.
The 1332 waiver was originally sold as a way to get “state-level single-payer” — a myth that reporters still echo. In fact, President Obama personally pointed to the 1332 provision as a reason for liberal Democrats in Congress to support the bill:
But, said one attendee, Obama pointed Kucinich toward single-payer language that Sen. Bernie Sanders (I-Vt.) was able to get into the bill. Kucinich fought for an amendment that would allow states to adopt single-payer systems without getting sued by insurance companies. Obama told Kucinich that Sanders’s measure was similar but doesn’t kick in for several years. “He definitely wrote it down,” said one member of Kucinich, suggesting that he’d look into it.
Of course, at the time the idea that the 1332 waiver could actually result in any state single-payer programs was highly suspect.
The 1332 waiver did not start until 2017, which meant requiring states to put in all the effort to build the local ACA system first only to then turn around and build a single-payer system a few years later.
Based on the natural cycle of presidential elections, it was safe to assume in 2017 we would have a Republican president who would be hostile to single-payer, which is exactly what happened. The waiver also did not extend to Employee Retirement Income Security Act (ERISA), a law which most health care experts agree is one of the biggest hurdles preventing states from moving to single-payer.
What looked like a thin straw of hope in 2010 was quickly turned into a farce by the Obama administration. The Obama administration adopted a conservative interpretation of the waiver requirements after the ACA was adopted.
Most importantly, the Obama administration showed no interest in working with Vermont Gov. Peter Shumlin to find a way to use the 1332 waiver to create a single-payer system in his state. The administration only wanted Obamacare to work. They did not want to help create workable alternatives.
Instead of actually making the ACA more progressive to appeal to liberals, the Obama team bought them off with the mere illusion of progressiveness. Now, the Trump administration has seized on this provision to undermine the law.
This is providing red states a level of flexibility the Obama team never granted to blue states. Obama officially played himself.